FEDERAL COURT OF AUSTRALIA

BZP15 v Minister for Immigration and Border Protection [2019] FCA 1351

ORDERS

THE COURT ORDERS THAT:

1.    The appeal filed on 10 July 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (FCC) made on 2 April 2019 in BZP15 v Minister for Immigration & Border Protection [2018] FCCA 1731. The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal.

2    The decision subject to the judicial review by the FCC was a decision of the Tribunal dated 3 September 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection visa.

Background

3    The appellant is a citizen of India. He first applied for a protection visa in 2008, having arrived in Australia earlier that year on a tourist visa. His application was refused by a delegate of the Minister on 15 August 2008.

4    The appellant sought review of the delegate’s decision to the (then) Refugee Review Tribunal (RRT), and on 13 November 2008 the RRT affirmed the refusal decision.

5    The appellant then applied for judicial review of the RRT’s decision to the (then named) Federal Magistrate’s Court. That Court dismissed the application on 20 April 2009. The appellant appealed to the Full Court of this Court, but his appeal was dismissed on 21 August 2009. The appellant then applied for special leave to appeal to the High Court, but that application was dismissed on 7 December 2009.

6    The appellant then applied for ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth). On 14 March 2010, the appellant was advised that the Minister declined to intervene in his case. The appellant’s bridging visa thereafter ceased and he became an unlawful non-citizen.

7    Some three and a half years later, the appellant was taken into immigration detention. He then made a second application for a protection visa. His claims for protection were summarised by the delegate of the Minister as follows:

•    He was involved in and supports the Congress Party. He was involved in the Jubo Congress in the Dalgaon branch of Assam state.

•    Because of his political activities, he became an enemy of the ULFA terrorist organisation. ULFA target supporters and members of the Congress Party for harm.

•    Because of his political opinion, he will face a real risk of significant harm if he returns to India. He cannot get state protection because the police are ineffective. He cannot relocate as he will continue to face harm.

8    The delegate found that the appellant’s claims differed significantly in detail from those he particularised in his first protection visa application. The delegate found that the appellant had curiously asserted that he does not have a wife and child in India, despite maintaining in all its dealings with the Department up until the lodgement of his second protection visa application that he did. The delegate did not believe the appellant’s claims that he has no wife and child and considered the appellant “to not be a credible historian”.

9    The delegate noted that in support of his application, the appellant had provided four letters purportedly from the United Liberation Front of Assam (ULFA), a letter from the National Students’ Union of India (NSUI) and a letter from the Dalgaon Youth Congress. All the letters are dated after the lodgement of the appellant’s first protection visa application and were produced by the appellant during the protection visa interview by the delegate and the hearing before the RRT.

10    The delegate did not find any of the letters to be genuinely issued documents. In their view, the letters were prepared specifically for the protection visa application. The delegate considered them as further evidence that the appellant is “not a credible historian” and that his claims for protection are not credible.

11    Taking into account the findings regarding the appellant’s overall credibility, the findings on the credibility of the letters presented by the appellant, the appellant’s lack of knowledge on the simple matter of membership of the groups that he was said to be president of, and his lack of knowledge on the objectives of the ULFA, the delegate did not consider the appellant’s claims for protection to be credible.

The Tribunal

12    The Tribunal applied the reasoning in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 and found that it could only consider the appellant’s claims under the complementary protection provisions in s 36(2)(aa) of the Act.

13    The Tribunal noted various difficulties with the appellant’s evidence and was not satisfied that the appellant was a “generally credible witness”. The Tribunal was nevertheless prepared to accept several aspects of the appellant’s claims. In particular, the Tribunal was prepared to accept that the appellant had had some limited involvement in the Dalgaon Block Youth Congress (DBYC) but found that he ceased being a member of, or actively associated with, the group in 1990 and no problems arose from his former link with the DBYC.

14    Similarly, the Tribunal accepted that the appellant had a very limited role in his local village authority for some time after 1990 but was not satisfied, in light of the country information to which it referred, that the appellant would face any harm for this reason.

15    The Tribunal noted that the appellant had requested that it call an ex-Minister of State from Assam. The Tribunal refused this request and noted that it found the appellant’s claims relating to the ex-Minister to be “very difficult” to understand. In any event, the Tribunal accepted that the appellant may have had some “very limited (perceived) ongoing association” with either the DBYC or a local politician after 1990 but did not accept that he would face a real risk of significant harm for this reason.

16    The Tribunal was prepared to accept the appellant’s claim of having been kidnapped by the ULFA in the past. On this basis, the Tribunal accepted that should the appellant return to Assam State, he again may come to the adverse attention of the ULFA or similar persons or groups who may seek to extort money from him. Notwithstanding its doubts about the appellant’s evidence, the Tribunal went on to consider the claim on the basis that there was a real risk of the appellant facing significant harm if he returned to Assam State.

17    The Tribunal was satisfied that the appellant could avoid any such harm by relocating to Kolkata, and that it was safe and reasonable for him to do so. In finding that it was safe for the appellant to relocate to Kolkata, the Tribunal found that the appellant would not be of interest to the ULFA or any other group in Kolkata.

18    The Tribunal then proceeded to explore the appellant’s particular circumstances and whether it would be reasonable for him to relocate. In this regard, the Tribunal noted the appellant’s evidence that he had previously lived in Kolkata for nine months with a relative and found that the appellant would be able to establish a business or otherwise find work commensurate with his skills. Further, the Tribunal noted that the appellant had not raised any concerns with respect to accommodation, infirmity, health services, education or language. The Tribunal concluded that it was reasonable for the appellant to relocate to Kolkata.

19    Considering the claims cumulatively, the Tribunal was not satisfied that the appellant faced a real risk of significant harm were he to return to India. On that basis, it affirmed the decision of the delegate.

The FCC

20    The appellant asserted three grounds of review of the decision of the Tribunal in the FCC.

21    Ground 1 was that the Tribunal made a decision which was unreasonable and capricious. This was said to be on the basis that the Tribunal rejected corroborative evidence, particularly letters, which were submitted to the Tribunal in connection with the appellant’s party affiliation.

22    The primary judge rejected the appellant’s contentions raised in ground 1. Her Honour held that it was reasonably open for the Tribunal to take the approach it did to the appellant’s corroborative letters and that it was not obliged to accept those letters uncritically. Her Honour held that the appellant had not established legal unreasonableness in respect of the Tribunal’s reasoning relating to the appellant’s evidence or the outcome of the decision.

23    The primary judge additionally held that there was no evidence that the appellant asked the Tribunal for the letters to be “verified” with Australian authorities in India and there was no obligation on the Tribunal to make any further enquiries in this matter. Her Honour also concluded that the appellant sought “impermissible” merits review insofar as he took issue with the merits of the Tribunal decision or sought an opportunity to provide further evidence about the situation in India.

24    Ground 2 before the FCC was that the Tribunal misunderstood the appellant’s claims and failed to judge the claims on the basis of the reality and the prevailing situation in the particular area where the appellant lived and undertook his political activities.

25    In relation to ground 2, the primary judge noted that the particulars to this ground did not correlate with the ground and the appellant did not elaborate on this ground. Her Honour held that the particulars misrepresented the Tribunal’s decision as it did not find that the appellant had been “President of or at ‘National level’”. Her Honour held that the Tribunal identified and addressed the appellant’s claim by his corroborative evidence that he occupied the post of President of the DBYC for a particular district and his oral claims, which did not include a claim of a “National” presidency. Her Honour held that the appellant had not established that the Tribunal had misunderstood his claims.

26    The primary judge additionally held that ground 2 revealed no error insofar as it was intended to be a complaint that the Tribunal did not assess the appellant’s risk of significant harm in his home area of India (Assam State). Her Honour noted that the Tribunal proceeded on the basis that the appellant had a real risk of being subject to extortion attempts from the ULFA or similar groups in Assam State and in that context considered the reasonableness of relocation to Kolkata and whether he would face harm in Kolkata. It was held that the Tribunal’s findings had regard to the particular circumstances of the appellant and the specific objections raised by him as required by the relevant authorities. Ground 2 was therefore not made out.

27    Ground 3 before the FCC was that the Tribunal considered an irrelevant consideration, namely that the appellant had stated to the Tribunal that he was never married and did not have any children, but the Tribunal did not believe him.

28    The primary judge also found that ground 3 of the application was not made out. Her Honour noted that this ground misunderstood the Tribunal’s decision in circumstances where the Tribunal accepted that the appellant was unmarried, and that no error arose in the Tribunal’s findings in this regard. Insofar as the ground was directed to the Tribunal’s consideration of country information, her Honour held that it was not an error for the Tribunal to have regard to relevant country information in assessing the appellant’s claims.

29    The primary judge went on to consider issues arising from an affidavit filed in the FCC proceeding on behalf of the Minister. It referred to a certificate issued under s 438 of the Act and annexed the documents covered by the certificate that had been provided to the Tribunal but which had not been disclosed to the appellant until the affidavit was filed in the FCC. I will consider the primary judge’s treatment of this issue under appeal ground 3 below.

The appeal grounds

30    The appellant’s originating process in this Court asserts four grounds of appeal. I will consider each in turn.

Ground 1: rejection of corroborative evidence

31    Ground 1 in the appeal is in the following terms:

The trial judge made a finding in saying that “the Tribunal did not make a finding rejecting the corroborative evidence in its entirety and it was contended”. Honourable trial judge erred in providing remedy of it.

32    The appellant was unrepresented before me and was not able to assist me in understanding this ground other than to confirm that it relates to his complaint that the Tribunal did not accept the letters that he submitted from various organisations. Doing the best that I can, I understand this ground to assert that the primary judge erred in respect of ground 1 in the review. The primary judge was correct to conclude that the Tribunal did not make a finding rejecting the relevant corroborative evidence in its entirety. Her Honour rightly held that it was reasonably open to the Tribunal to reject aspects of the corroborative evidence, for which it gave reasons.

33    I am not able to find any appealable error in the primary judge’s reasoning in respect of ground 1 below. Ground 1 in the appeal accordingly fails.

Ground 2: membership of the Youth Congress

34    Ground 2 in the appeal is in the following terms:

The Second Respondent accepted that the Applicant was a member of the Youth Congress and denied its consequences and trial judge also erred in respect to this matter, as such the appellant failed to attend the procedural fairness.

35    I asked the appellant to particularise the manner in which he says that the Tribunal did not treat him with procedural fairness, but he was unable to assist. Aside from the s 438 issue which is dealt with under ground 3 below, I have been unable to discern any procedural fairness difficulty.

36    With regard to the appellant’s membership of the DBYC, the appellant reiterated before me that he was deeply involved in the Youth Congress but the Tribunal did not believe him.

37    The Tribunal accepted that the appellant was a member of that organisation, that he ceased being a member or actively associated with it when he was 26 years old (1990), and that he did not have any problems arising from his former membership between 1990 and the time of his departure from India in 2008. The Tribunal also accepted that the appellant may have had some very limited ongoing association with either the DBYC or a local politician after 1990 in his home village. However, the Tribunal was not satisfied that whatever the appellant may have done after 1990, he would face a real risk of significant harm should he return to Assam State. The Tribunal was satisfied that that is why the appellant continued to work and reside in his home village without harm prior to “fleeing” to Kolkata in June 2007.

38    The appellant’s attempts to assail these findings clearly seeks to enter into the merits of the case. I can find no jurisdictional error in the way in which the Tribunal dealt with this aspect. It was within its powers and jurisdiction to make the factual findings that it did in relation to the appellant’s involvement in the DBYC and its conclusion that that involvement would not give rise to a real risk of significant harm if he was not to return to Assam State is not affected by jurisdictional error. Accordingly, ground 2 in the appeal also fails.

Ground 3: section 438 certificate

39    Ground 3 is in the following terms:

The Tribunal failed to provide the appellant the certificate in accordance with section 43(1)(a) of the Act. Honourable trial judge erred in this regard in failing to provide benefit of the appellant.

40    Section 43 of the Act is not apparently relevant to this case. The appellant however confirmed on my enquiry that this ground is intended to refer to the s 438 certificate that was furnished to the Tribunal.

41    I therefore understand this ground to complain of the primary judge’s conclusion with regard to documents that had been produced to the Tribunal under s 438 of the Act, but not produced to the appellant until during the proceeding before the FCC.

42    The effect of s 438 of the Act is that if the Minister has certified, in writing, that the disclosure of any matter contained in an identified document, or the disclosure of identified information, would be, relevantly, contrary to the public interest and the Secretary notifies the Tribunal thereof, the Tribunal may have regard to any matter contained in the document or the information and may, if the Tribunal thinks it appropriate to do so, disclose any matter contained in the document, or the information, to the visa applicant.

43    The decision of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 (particularly at [2], [27], [29], [38] and [45] per Bell, Gageler and Keane JJ), establishes that a Tribunal’s failure to disclose to a visa applicant the notification to it of a s 438 certificate, whether or not that certificate is valid, constitutes a breach of the Tribunal’s obligation of procedural fairness. However, this constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal, and thereby deprives the applicant of the possibility of a successful outcome, i.e. if it could realistically have resulted in a different outcome.

44    Where, as the Minister accepts in this case, the certificate that is notified to the Tribunal is invalid, that constitutes a breach of the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review: SZMTA at [44]. Such a breach will amount to jurisdictional error if it deprived the applicant of the possibility of a successful outcome in the sense that there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account: SZMTA at [3] and [48].

45    The question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof; like any ordinary question of fact, it is to be determined by inferences drawn from the evidence adduced on the application: SZMTA at [46].

46    The primary judge considered the documents, and then asked herself whether the Tribunal had “acted on” the certificate or the documents covered by the certificate. That was at a time prior to the judgment in SZMTA, which has established a different test. The primary judge was accordingly in error in this respect. It is appropriate and convenient for me to consider the documents in the light of the correct test.

47    As concluded by the primary judge (at [59]), the documents the subject of the certificate are internal departmental documents relating to the appellant’s unsuccessful request for ministerial intervention under s 417 of the Act in 2010. There is nothing in them that has any bearing on the appellant’s substantive claims for a protection visa, other than a summary of the claims that he had made at that time. The documents do not feature in the Tribunal’s reasons, and nothing addressed by the documents has any bearing on the Tribunal’s reasons.

48    Before me, the appellant accepted the characterisation of the documents as being internal departmental documents dealing with his application many years ago for the Minister to intervene in his case and that they are not relevant to the substance of his claims for protection. He was not able to identify anything he might have said to the Tribunal about the documents if he had known of them at that time. Also, if the Tribunal had taken the documents into account that could not have made any difference to the decision.

49    In the circumstances, I am satisfied that had the fact of the invalid certificate not been notified to the Tribunal, or had the Tribunal notified the applicant of the notification to it of the invalid certificate, that could not, as a realistic possibility, have made any difference to the outcome before the Tribunal.

50    In the circumstances, ground 3 fails.

Ground 4: constructive failure by the Tribunal

51    Ground 4 is in the following terms:

The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant particularly unfairness was committed by the Second Respondent.

52    Once again, this ground is difficult to understand and the appellant was unable to assist me by giving it any particularity in the hearing before me other than to say that he was involved in politics as a high profile leader and that it is not safe for him to return to India. Once again, those are substantive matters. I am not able to find jurisdictional error in the manner in which the Tribunal considered the appellant’s claim, including by way of any procedural unfairness.

53    In the circumstances, ground 4 also fails.

Conclusion

54    For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:    27 August 2019